2020 · Clinton · Elections · Supreme Court


Democrats lost an election in 2016 that they and everyone else thought they were going to win. I have always said that the two most surprised people on election night were Hillary Clinton and Donald Trump. This has caused a great deal of angst among Democrats and liberals in general. Most of them, led by Hillary Clinton, have found a myriad of reasons to pin the blame on anything but themselves. It had to have been Russian meddling in the election, it had to have been collusion by the Trump campaign with Russians or it had to be the electoral college robbing her of victory. What most fail to acknowledge publicly (many of my friends do so privately) was they allowed their own nominating process to be controlled by the Clintons and skew the process to a point where nobody else could win and in the end nominate a candidate that was so flawed that someone as pathetic as Donald Trump could beat her.

One of the key results of any Presidential election is the nomination of people to sit on the Supreme Court of the United States. Being honest, this was the deciding factor for me in who to vote for in the last Presidential election. I want Justices that look at the Constitution and interpret it in a manner that is consistent with the intent of the Founding Fathers. I believe that Democrats want Justices that will change society in a manner that suits their own political whims. That is the duty of the Congress, duly elected by the people they represent, and not the Judicial branch of government.

In the aftermath of the election, one of the things that gets pointed out over and over was that Hillary Clinton won the popular vote. Hillary Clinton received 65,845,063 votes and Donald Trump got 62,980,160. That means that 2,846,903 more people in this nation voted for Clinton over Trump. So now there is a move among many Democrats to abolish the Electoral College and replace it with the popular vote. But this is antithetical to everything the Founding Fathers set up. At the birth of our nation, there was a great debate on how to elect the President. At that time there were three major population centers: New York, Boston, and Philadelphia. The rural areas of the nation feared that these three cities would decide all elections and their interests would be subsumed by the urban voters. A bit of history is necessary to understand what happened.

In the Constitutional Convention, there was a great deal of debate on how to elect the President. There were two competing sides in the debate at that time. Many of the delegates wanted to have the President elected by popular vote while many of them wanted Congress to vote on who would be President. The compromise they arrived at is that each state would be awarded electoral votes based on the number of House and Senate members were elected from that state. The vast majority of states give those electoral votes to the candidate that wins the popular vote in their state. States have the right to apportion those votes and Nebraska and Maine give the two Senate votes to the popular vote winner and the other votes are given to the candidate that wins the popular vote in the congressional districts of each state.

Now let’s fast forward to the present. If we went strictly by popular vote, then states like California and New York would have a disproportionate influence in the election beyond what they have now. Just using California Clinton received 4,269,978 votes more than Trump. That is more than the margin of the popular vote she accumulated in the entire election. Throw in New York where she won by a margin of 1,736,590 votes and you can see that the popular vote would be heavily skewed by just these two states. This is exactly what the compromise of our founding fathers was trying to avoid.

You can find the electoral college in the 12th amendment to the Constitution. Originally each elector cast two votes and the candidate with the most votes became the President and the one with the second highest total became the Vice President. Under that system, you would have a President Trump and a Vice President Clinton. The Twelfth Amendment changed that to where each elector cast one vote for President and one for Vice President.

Today we have a lot of Democrats calling for an end to the Electoral College because they feel they will fare better with a popular vote total. California has become a heavily Democrat stronghold as is New York. This change would give Democrats a better chance at winning Presidential elections hence the call for the change. But it would ignore what the Founding Fathers came to understand. We are a very diverse nation and anyone becoming President should be appealing to voters across the nation. Do any of you pretend that the interests of people living in New York are the same as those in Mississippi? How about those in California versus those in Texas? What about Illinois compared to Nebraska?

If Trump had won the popular vote there would be no discussion of this change. The reality is that it would take a constitutional change and it is not in the interest of the smaller states make this change. But that will not stop Democrats from trying to come up with ways to get what they want. Enter the National Popular Vote Interstate Compact. Under this proposal, made in solidly Democrat states, if a candidate wins the national popular vote then they would award their electoral votes to that candidate irrespective of the voters in their state. These changes were proposed and passed in Democrat-controlled legislatures and designed to be an end run around the Constitution. Currently, Maryland, New Jersey, Illinois, Hawaii, Washington, Massachusetts, District of Columbia, Vermont, California, Rhode Island, Connecticut, and Colorado have joined this compact. That is a total of 181 electoral votes, all of which went to Clinton in 2016 so unless some states that Trump won decided to do this it will have no effect.

The second big issue that Democrats want to change is the make-up of the Supreme Court. Currently, there are nine Justices on the Court and five of them have been appointed by Republicans. That does not sit well with the liberal in this country who want activist Justices that will usurp the role of the legislature and shape society in their views. The way around the current make-up of the Court is to “pack the Court” with up to 15 Justices. Some form of this has been endorsed by current Democrat Presidential candidates including Booker, Warren, Harris, and Gillibrand. They base this argument on what is, in my opinion, a flawed point.

The failure of Merrick Garland to be brought before the Senate in 2016 after being nominated by President Obama has been both a sticking point and rallying cry for Democrats. What is lost in all of this anger is a simple fact: Garland was not going to be confirmed by a Republican majority in the Senate. In some ways, they did Judge Garland a favor. If he had failed to be confirmed, then years later all that would be said about his nomination was that he failed. In truth, he was about as good a nominee for as you could get from a Democrat President just as Neil Gorsuch was a nominee that would have been similar if the Democrats had controlled the Senate. And when Elizabeth Warren complains that the Republicans changed the rules on Supreme Court nominations, eliminating the 60-vote rule, she fails to mention that it was Harry Reid as the Democrat Majority Leader that went nuclear first and eliminated the 60-vote threshold on all nominees for federal judiciary positions and Executive Branch positions.

So now Democrats want to pack the Court. There is nothing in the Constitution that would prevent them from doing that but it would require a change in the law and that would mean abandoning Rule 22 (filibuster rule requiring 60 votes on legislation) completely and when they lost that majority they would have no recourse to stop anything Republicans wanted to do. I am not sure either party is ready to make that draconian move.

Democrats tried this once before under the Franklin Delano Roosevelt administration. The Court was striking down much of his New Deal, so he decided to pack the Court with his own nominees. It was met with such disapproval by the public that he soon abandoned that effort.

One proposal comes from another Democrat Presidential candidate, Peter Buttigieg, the mayor of South Bend, Indiana. He would have Republicans and Democrats appoint 5 Justices each and then those 10 Justices would appoint 5 more but it would have to be unanimous on those picks. That would mean the court would be stuck at 10 in my opinion.

Packing the Court may sound good to the far left still smarting over Garland and the Trump appointments of Gorsuch and Kavanaugh, but it is not good politics in middle America. Democrats run on this issue at their own peril.

What I would suggest is that we put some age limits into this equation. First, I would say that no member of Congress can run for reelection after achieving their 75th birthday. Second, I would have all Federal Judges, including those on the Supreme Court, take senior status at age 80. I am sure neither will happen since Congress is not going to term limit themselves in any manner and neither side wants to force their Justices to retire when they might not have control of the White House.

Both of these issues are a direct result of the Democrats losing the White House in 2016 in a year they thought it was locked up. At some point, the adults in the party are going to have to step up and tell the left wingers that it is time to get over 2016 and start running on issues besides being anti-Trump. Voters need to see a reason to vote for you and not just a reason to vote against someone else.

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